THE WA SENATE ELECTION SEPTEMBER 2013
TOSSING A COIN: A VERY AUSTRALIAN SOLUTION?
Introduction
The inconclusive outcome of the Federal election in September 2013 to fill six Senate vacancies for
Western Australia1 was not only a political disaster in terms of not yielding a clear division of seats
among the contesting candidates (or perhaps more realistically, the parties which they are claim to
represent). It puts in question the appropriate process for resolving the imbroglio so that the State
will be able to furnish its full entitlement of Senators as of 1 July 2014 when the Senate is newly
constituted. This raises issues of the legal options, both theoretical and practical, that are available
to determine the relevant six persons ‘chosen’ to represent the ‘people of the State’.2
The appropriate method of resolving the problem has both legal and constitutional aspects. Legally,
under the process available under the Commonwealth Electoral Act 1918 (the Act) the matter is to
be determined by the High Court (or a Justice of the Court) sitting as what is known as a Court of
Disputed Returns (CDR), in effect, a special electoral tribunal.3 Constitutionally, the objective is to
produce a result that is consistent with the requirement in s 7 of the Constitution that Senators
representing a State should generally4 be "chosen by the people of the State".
If one has regard to the broad consensus of commentary, it would appear that the most and perhaps
only viable option open in the circumstances is that the CDR declare the September election void
and give directions for the institution of the new election for the State.5 Various justifications for this
have been given such as that is the only "fair" or “just” solution6 or the only reasonable one given
1
2
3
4
5
6
The process for filling six Senate vacancies (half the State’s entitlement of twelve) may also properly
be called a ‘half-Senate election’.
This description accords with s 7 of the Commonwealth Constitution.
See s 354 of the Act. The CDR occupies a twilight zone between exercising judicial power as if a court
and quasi-legislative, non-judicial arbitral power. Despite doubts about the constitutionality of this
institution on the grounds it infringes the implied separation of powers under Chapter III of the
Constitution it has been held not to infringe that implied separation; see Sue v Hill (1999)199 CLR 462;
163 ALR 648; Kristin Walker ‘Disputed Returns and Parliamentary Qualifications: Is the High Court's
Jurisdiction Constitutional?’ (1997) 20 University of New South Wales Law Journal 257.
This leaves out of contention the filling of ‘casual vacancies’ by the State Parliament or Governor
under s 15 of the Constitution. Interestingly and relevantly, s 15 introduces the constitutional concept
of a ‘party’ into constitutional discourse.
This view has been advanced at different times as variously inevitable, most likely, reasonable or
simply preferable by a range of commentators including Kevin Bonham, Antony Green, Anne Twomey
and John Warhurst among others. Narelle Miragliotta, ‘A new Senate election looms large for
WA voters’ Monash University Arts Online website 4 November 2013, on the other hand has drawn
attention to the difficulty of predicting how the CDR might find in this matter because there is no
similar case for comparative purposes.
One can ask: “Fair to whom: The candidates, the parties, the State or electors?” Inattention to such
precise conceptual refinements tends to camouflage and clothe with over-simplicity the true nature
of the interests and purposes of the Australian system of ‘representative government’ identified by
the High Court in cases such as Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR
106, Nationwide News v Wills (1992) 177 CLR 1 at 46-47, 70-72; Theophanous v Herald & Weekly
Times Ltd (1994) 182 CLR 104; McGinty v Western Australia (1996) 186 CLR 140 Lange v Australian
Broadcasting Corporation (Political Free Speech case) (1997) 189 CLR 520, Roach v Electoral
Commissioner (2007) 233 CLR 162 and Rowe v Electoral Commissioner (2010) 243 CLR 1 among others.
1
the attendant uncertainty attaching to the September result. The latter is the key justification
provided by the Australian Electoral Commission (AEC) when, having regard to its major
administrative blunder in misplacing, apparently irrecoverably, over 1300 ballot papers, it instituted
a petition (the Petition) in the CDR on 15 November 2013 asking the Court to declare the September
Senate result absolutely void.7 That is certainly one option open to the CDR under s 360(1)(vii) of the
Act.8 Significantly, the Court’s discretion in considering that option is extraordinarily broad, s 360(2)
providing that:
“The Court may exercise all or any of its powers under this section on such grounds as the
Court in its discretion thinks just and sufficient.”
This is augmented by s 364 which is directed to ensuring that ‘real justice’ is to be observed.9 It
reads: “The Court shall be guided by the substantial merits and good conscience of each case without
regard to legal forms or technicalities, or whether the evidence before it is in accordance with the
law of evidence or not.” Lacking specific prescriptive criteria the provision is more liberating than
limiting, allowing the Court to take into account a wide range of considerations, factors and modes
of resolution, including directions regulating the kinds of relief ordered.
The only two other possible results that have been seriously put in contention are first, that the
result as determined by the original count (otherwise described as the ‘first scrutiny’) of the AEC on
to October 2013 should stand or secondly, that the result declared by the AEC on the recount of
votes (the ‘fresh scrutiny’) completed on 4 November 2013 should be taken to be conclusive.
Neither of these alternative options would require Western Australia to engage in another fresh
(and necessarily expensive) Senate by-election. As it happens, Labor and the PUP each filed a
petition on 10 December 2005 seeking to have the original scrutiny upheld.
7
8
9
The Petition was instituted under s 357 of the Act. It is set forth in Commonwealth Gazette No C 17 of
2013, dated 15 November 2013. In paragraphs 47-51 of the Petition the AEC asserts that: “Given the
closeness of the margins that favoured the final two declared candidates, the petition is based on the
premise that the inability to include 1370 missing ballot papers in the recount of the WA Senate
election means that the election was likely to be affected … and it is just that the Election should be
declared void.” For reasons discussed below the closeness of the margins may count against holding a
fresh election.
Regarding its powers, the CDR, to meet the range of contingencies consequent upon an election may
declare thati. any person who was returned as elected was not duly elected;
ii. any candidate who was not returned as elected was duly elected; or
iii. any election is absolutely void.
The powers of the CDR are often confused with its jurisdiction; jurisdiction is concerned with the kind
of subject matter which is the subject of a controversy or dispute. For example, one issue that has
arisen with CDRs is whether they have jurisdiction to determine questions of disqualification of
Members of the House of Representatives and the Senate. Although there was doubt prior to the
decision in Sue v Hill (note 3 above) that the High Court could deal with such issues, it is now accepted
that claims that a person elected as a Senator may be disqualified from taking his or her seat by virtue
of s 44 of the Constitution can be determined by the High Court. Hence, for example, if a candidate
were a recently naturalised Australian a question might arise about whether he or she is a person
open to a claim of a disqualification under s 44(i) as still ‘entitled to the rights or privileges of a subject
or a citizen of a foreign power’ because they are eligible to use a foreign passport. The CDR has
jurisdiction to determine matters of the latter kind (Sykes v Cleary (1992) 176 CLR 77) although no
such issue arises in the current proceedings.
The caption to the section is cast in those terms.
2
Why not solve the dilemma by the toss of a coin?
The purpose of this comment is to propose that there is in fact another alternative, which, although
at first glance might seem to be somewhat fantastical and not capable of being seriously
entertained, is available. This is: the outcome should be determined upon a toss of a coin as
between the two pairs of candidates currently contending for the fifth and six places. In the
colloquial and popular sense it might even be thought of as appropriately ‘Australian’ (and not
simply because of Australia’s cultural heritage as a nation of gamblers).
Now I appreciate that the instinctive and immediate reaction to this suggestion is (again in
Australian terms); "You must be kidding! You can't seriously be suggesting a result of such national
importance should turn on the flip of a coin (or drawing lots) as if it were a game of electoral twoup?” Yet on further reflection and careful analysis these and many similar objections can be met and
rationally countered.
In fact, the proposal can be shown to be soundly based in both legal and constitutional tradition and
most likely, in mathematical and statistical terms, to result in what conceptually would be the leastuncertain outcome while maintaining fidelity to the contemporary "choice" of the Western
Australian electorate in September 2013.
Permitting chance to operate at the core of our democratic system may seem counterintuitive; but
historically resolution by coin toss is by no means unknown. Going back to Greek and Roman times,10
methods dependent on chance have been widely used to function as an electoral tie-breaker. While
at first glance a coin-toss might seem to represent an exercise in electoral voodoo it may in fact offer
a more objective scientific result than other proceedings each of which will entail a long-drawn out
forensic joust.11
The history of the matter to date: the failure to obtain a (sufficiently) ‘certain’ result
In the original result on 2 October 2013, the AEC declared that three Liberal and one Labor Senator
had clearly procured the necessary quotas to fill four of the six Senate places in Western Australia.
This left two vacancies in play. After distributing the very complex allocation of preferences
according to the ‘above the line’ schemes of distribution nominated by the myriad micro-parties the
last two places were distributed one to Labor, Louise Pratt, and the other to Zhenya Wang, the
Palmer United Party (PUP) candidate.12 Upon the Green candidate, Scott Ludlam, requesting a
recount the result was reversed and Ludlam and a candidate of the Australian Sports Party (ASP)
Wayne Dropulich were declared as filling the remaining spots.
What was revealed in the recount was that there had been a number of ballot papers that had been
incorrectly included or excluded by reason of informal breaches of the electoral regulations. But
even more significantly, a total of 1370 ballot papers from two main electoral divisions could not be
10
11
12
References to be supplied.
Analysed in terms of game theory, coin tossing provides even odds to both sides involved.
In the extremely complex process outlined in the Petition the critical point was reached at what is
described as the 50th exclusion point in the process of distribution of preferences of minor parties;
see paras 32-33 of the Petition. At that point a change in the allocation of even one vote may have
affected the ultimate outcome.
3
found nor accounted for. They were not included in the fresh scrutiny. However, to the extent that
the recounting process was applied having regard to votes known to be validly cast the result meant
that a margin originally assessed as 12 votes in favour of the Labor and UPP candidates was
displaced by a narrow margin favouring the Green and ASP nominees. Even that outcome was itself
subject to some doubts about its accuracy and further analysis by independent commentators
suggests the margin may be reduced to as little as a single vote in favour of restoring the Labor and
PUP candidate to the Senate.13 To describe the process in such simple terms, however, fails to
capture the very complicated technical machinations and statistical methodology that was entailed.
Yet even on that analysis one can see the basic sense of concluding that in the absence of specific
rectification of the large amount of ‘lost’ votes, including ballot papers that contextually might have
been informal or otherwise invalid, there is no prospect of determining an absolutely accurate and
certain result. In that respect, the claims as between the four contending candidates as to which pair
of them should be returned on the basis of estimating the inherent impact of informally cast papers
(in either the original count or the recount) seems to offer no satisfactory conclusion. On the other
hand, in light of the solution proposed by the AEC, it is pertinent to ask: Is the simple fact (or rather
condition) of ‘uncertainty’ enough to avoid the WA September poll and require that the whole State
should again go to a fresh election?
Should the CDR enter upon a detailed examination of specific defects in the counting process?
One option available to the CDR is to focus on particular defects of the fresh scrutiny in terms of
whether individual ballot papers are formal or not and attempt, as an evidentiary fact-finding
exercise to quantify the margin of difference separating the two pairs of contending candidates. This
depends on identifying specific accounting errors at the relevant periods in the counting process.14
This could absorb an enormous amount of time and effort and arguably would conduce neither to
finality nor an expeditious determination.
The other is to focus on the major administrative default arising from the missing 1300+ votes and to
attempt to reconstruct, notionally at least, a feasible although approximate outcome based on
degrees of probability. This in turn presents the prospect of becoming a lengthy contest between
psephologists, political scientists, statisticians, electronic engineers and probability-number
13
14
See, for example, Antony Green (reference to be provided).
These factual issues and evaluations relevantly include:

Is it possible that a petitioner could establish a reasonable likelihood that one or other of the
‘counts’ is more reliable in reflecting the notional outcome?

Or is that impossible because the first recount is, statutorily, spent?

In the event of possible disputes about the indeterminate number of ballot papers that could
have been informal but have now been lost on what basis should they be denied validity,
simply because there is no relevant evidence about their status?

Does the failure to attribute a notional allocation of votes in respect of the lost papers
represent an unconstitutional disenfranchisement of voters?

What is the principal role of the CDR; is it a substitute for the AEC in administratively seeking
to determine the most likely result?

What are its evaluative or executive functions and to what extent does it have discretion
both as to declaring an outcome and directing how a future ballot should be conducted?

Has the AEC so compromised the fairness or integrity of the ballot to such an extent that a
new election should be instituted?
4
theorists. It would address more directly the concepts of uncertainty entailed in what might be
called loosely and with a certain flexibility of language, the "result" of the election. However, if
correspondence with a "true" summation of the total votes is the statutory objective, neither
process can be said to represent in absolute terms ‘the choice of the people’.
In the circumstances the defects in the September ballot include both kinds of potentially
invalidating factors. Primarily the unaccounted-for disappearance of the 1370 votes is said to have
made it impossible to ascertain the ‘correct’ electoral result. That administrative default also entails
the consequence that lacking access to various ‘dubious’ ballot papers it is impossible to verify the
validity of particular contested ballot papers. In petitioning the High Court acting as the CDR the AEC
has based its claim to have the prior election declared void by reason of the ‘uncertainty’ resulting
from that administrative default. The "result" in either instance is incapable of perfect and definitive
resolution.
In essence the fact of that uncertainty (or at least indeterminacy) is the pivot of the AEC’s prayer to
vacate the result. Approached from that point of view, holding the September election a nullity is
initially a persuasive argument. The claim that there should be a new election based on such an
‘uncertain’ result fails, however, to have regard to the kind and the extent of that uncertainty and
whether, in comparative terms, alternative and preferable resolutions of the matter are available
within the margins of acceptable tolerance of some indeterminacy.15 That prompts the following
enquiry.
Is a new election necessary as the only just and reasonable alternative to remedy the defects in
the September ‘Election’?
In the first place, it needs to be appreciated that holding a new half-Senate election for the whole
State is without precedent. That fact alone suggests that such a solution should be regarded as
something of a ‘suspect’ anomaly. While the concept of an onus of proof upon petitioners may not
be appropriate in procedural terms, it is not unreasonable to argue that there is an implicit
constitutional presumption that a new election should only be held in exceptional circumstances
based on necessity.
A primary consideration in determining if there should be a new election is whether it can effectively
be conducted in circumstances equivalent to those in September 2103? Of course, it cannot
duplicate the myriad variable factors present in the instance of the original. The problems in that
respect arise with respect to:



15
16
the number and range of participating candidates and parties;16
changes in the political, social and economic environment; and
the intensity of campaigning and electoral funding involved, given the likelihood that many
parties, both major and minor will seize the opportunity to exploit the new possibility of
obtaining a place in the Senate.
‘Uncertainty’ is a relatively sophisticated albeit elusive concept (see Adrian Vermeule, ‘Rationally
Arbitrary Decisions (in Administrative Law)’, Harvard Public Law Working Paper no 13-24, 25 March
2013, distinguishing between crude and strategic uncertainty). It should not necessarily, however, be
equated with Schroedinger’s mythical cat.
This includes, if the parties are not limited to those in the original election, the possibility of new
micro-parties encouraged by the relative success of minor party candidates in that election.
5
For a start it is practically impossible to require all previous candidates to run again in a new ballot
simply in order to try and replicate the exact conditions of the invalid election because personal, life,
social and even economic circumstances will have changed. Parties with large cheque-books are
likely to have undue publicity while the importance of preference swapping by micro-parties will be
even more likely to exacerbate or distort the outcome. Past experience also indicates that voter
turn-out will be below that in September. Furthermore, a new half-Senate election will incur
considerable expense and require a large devotion of administrative resources and disruption to
institutions such as government schools. In physics parlance, given the time-warp between the
original poll and voting at a new election the gravitational pull of a collection of disparate factors
means that inevitably a different and arguably distorted reflection of the original ‘choice’ must
ensue. If the relief offered by a new election is intended to have a restorative or reconstituitive
outcome that prospect is illusory.
Would a new election represent a more accurate or democratic choice by the people?
Over all these considerations hovers a significant constitutional question: if the constitutional
mandate underlying the provisions of the Act is designed to ensure that elections for the Senate
represent the "choice of the people of this State" does that entail any temporal connotation that
would confine the choice to the period when the people of the Commonwealth are collectively
voting? In other words is there any requirement of contemporaneity?17 Is it not the case that to void
the present election on the basis of a technical failure of the AEC would subordinate the imperative
to give effect to the choice of the people as at September to considerations of procedural integrity?
Two factors come into play here: first, that the Constitution leaves considerable leeway to the
Commonwealth Parliament to determine the legislative measures that are permissible in dealing
with such things as Federal elections. The second is a concept of necessity that if for any reason a
Senate election for a State can be shown to be irrecoverably and irredeemably to have failed to have
produced a ‘satisfactory’ result a substitute election must be instituted to make good the void in the
constitutional scheme. Here, of course, the question is: What constitutes a satisfactory alternative
outcome? That requires the CDR to examine closely the possible alternatives for resolving conflicts
of interest in terms of whether any proposed method for determining the result, including tossing a
coin, is outside the boundaries of rationality and practicability.18
Arguably, these factors in combination provide cause for the CDR to hesitate before acceding to the
AEC's suggested resolution of a new election.
The suite of alternative options
17
18
Although located in a different area of constitutional discourse dicta in Western Australia v
Commonwealth (1975) 134 CLR 201 indicates that the High Court is prepared, on occasions, to
concede that a constitutional vacuum or institutional defect may persist for a considerable duration.
In that case, a number of "failures to pass" government bills on the part of the Senate was held to
accumulate over a period of time, each retaining their vitality to provide a trigger for instituting a
double dissolution of Parliament under s 57 of the Constitution.
The Constitution itself envisages that in certain situations such as the distribution of the number of
Members of the House of Representatives among the States pursuant to s 24 must be, as near as
‘practicable’, based on a prescribed quota of each State's entitlement; see Attorney-General (NSW);
Ex Rel McKellar v Commonwealth (1977) 139 CLR 52.
6
As envisaged above, the two most immediately available alternatives are to uphold the results of the
AEC’s first count or the fresh re-count. Both prospects are problematic. The first possibility confronts
the legal consequence that once a fresh count is instituted the original count is regarded as
statutorily ‘spent’ and incapable of resuscitation.19 Does that mean that if the first count is treated as
superseded, the result of the second scrutiny must prevail? That might be the sensible solution were
it not for the fact of the missing 1370 votes. In their absence it is not entirely feasible to resolve
conclusively any doubts about the invalidity of a number of those papers although some regard may
apparently be had to the electronic divisional records to the extent that they can be interpreted with
a reasonable degree of reliability. To give efficacy to either of the "counts" must concede that there
is a degree of variations that cannot be entirely eliminated. Recourse to either of these solutions,
even if available in accordance with the Act, is therefore unlikely to yield a result other than one
based to an unacceptable extent on evidentiary chance. Hence it constitutes something akin to a
forensic lottery. In that event, the question arises why not, if chance is a relevant factor, determine
the outcome by a lottery or tossing a coin?
A disposition by ‘chance’ is not necessarily irrational
Analysis by highly regarded specialists such as Antony Green of the Australian Broadcasting
Commission suggests that on the balance of probabilities from known objective data the result in
the end may hinge upon as little as a single vote.20 In that context, rather than discount the cointossing solution as unacceptably based on considerations of chance or randomness, one can
properly investigate the mathematical sense of both probability and chance to see if in fact choice by
lottery, confined to two sets of joint (paired) candidates offers a more rational solution than
selecting between the results of the first and second scrutinies, or holding a new election in
circumstances that have radically changed from those pertaining when the people of Western
Australia first attempted to express their electoral "choice". Also, as part of a broader calculus, one
can ask comparatively whether the impediments of holding a new election and the vagaries of its
outcome really do present a preferable alternative to attempting to salvage a result from the
previous election, notwithstanding the flaws in the latter.
There is moreover a considerable scientific literature that discloses that a toss of a coin may produce
a more rational outcome where there is a very narrow margin for error. The notion of chance or a
random result is arguably in that case more likely to approximate the choice of the people of
Western Australia than the other available alternatives.21
Election by toss of a coin is not novel: it is historically known and accepted
A second consideration of some importance is that over a long period of time, in the event of a tie in
electoral results or where close results are affected by unresolvable issues of doubt, in law and
19
20
21
See Re Lack; ex parte McManus (1965) 112 CLR 1, at [5] of decision: “The whole notion of a recount is
that the first count is to be disregarded and that the election of candidates is to depend upon the
result of the recount."
Reference to be supplied.
The margin for a random outcome is lessened by the fact that the margin is to be assessed in the
context of over 1,000,000 votes cast in the September election. Further, the inclusion of an element
of a random ‘taking’ (exclusion) of Senate votes has been long countenanced under the Act: see for
example, s 135(5)(e) as it then applied, discussed in Re Lack (note 17 above).
7
sometimes by choice of candidates, electoral administrators in various jurisdictions have determined
the matter by lottery or toss of a coin.22 There is, in fact, nothing novel about this proposal. Similarly,
the Commonwealth Act itself envisages, in admittedly rare circumstances, that in the event of a tie
in counting votes an electoral official may cast a deciding vote. What is the difference between such
human intervention and the physical result of drawing a name out of a hat or tossing a coin?
Traditional usage in other common-law jurisdictions23 and general common-sense both converge to
offer an alternative to instituting a new election, something which is itself as yet unprecedented in
Australian constitutional history.
Other pros and cons
The reality is that there are many potential imperfections in any large-scale election, including lost
and misrecorded votes, mistakes as to candidate identity, confusing ballot papers, exclusion of some
eligible voters, or polling places lacking proper facilities and equipment. This contributes to the
functional randomness necessarily inherent in the electoral process. Electoral disputes arising from
those imperfect circumstances are therefore prone to produce resolutions that entail at best only an
approximation of truth.
One virtue of the suggested process is to eliminate the need for lengthy judicial or tribunal
proceedings with attendant delays and costs when the outcome is not likely to be any more, and
perhaps even less ‘correct’ or ‘true’ than the one-in-two chance of the fall of a coin. Another is the
fact that for the four Senators who were clearly chosen on indisputably valid grounds, in accordance
with the procedures under the Act, their results will be maintained so that they will neither be
disadvantaged nor disenfranchised by the process.24 Finally, besides ensuring equity (and hence
justice in a practical sense) to those candidates properly selected, the interests of the remaining four
contesting candidates in the outcome will be preserved against opening them to the greater
uncertainty of a new election to be determined at a very different time and circumstances to those
prevailing at the original election. To summarise, coin tossing offers a simple and unbiased way25 of
deciding between two or more otherwise arbitrary26 options.
22
23
24
25
26
Although resort to a coin toss is usual in the case of a tie between two candidates there is no reason,
it is submitted why it should not be used in cases such as the present where the outcome is affected
by wafer-thin margins among a discrete set of candidates in dispute.
Coin tosses have been used to break ties in a wide number of US jurisdictions including New York,
Illinois, Wisconsin, Ohio, Missouri, Washington, Florida, Minnesota and New Hampshire. Other
variants of such electoral ‘lotteries’ have been devised. In Virginia for example, a winner’s name was
chosen from a hat. One recent example occurred in New Mexico when a tied Republican primary was
resolved by a coin toss: see Henry Grabar, ‘When a State Election Can Be Literally Determined by a
Coin Toss’, The Atlantic 19 November 2102. According to Wikipedia (entry on Coin Flipping) in the
United Kingdom, if a local or national election has resulted in a tie where candidates receive exactly
the same number of votes, then the winner can be decided either by drawing straws/lots, coin flip, or
drawing a high card in pack of cards.
Although in Blundell v Vardon (1907) 4 CLR 1463 the High Court held two Senators could retain their
positions while a third place was declared vacant and subject to a by-election that precedent no
longer holds under current electoral laws.
Analysed in terms of game theory coin tossing provides even odds to both sides involved.
‘Arbitrary’ is itself a notion of indeterminate classification and varies with the particular legal context
in which it is employed. See for example, in a constitutional sense, MacCormick v Federal
Commissioner of Taxation (1984) 158 CLR 622 and Deputy Federal Commissioner of Taxation v Truhold
8
Against this, it may be said that there is something notionally or culturally abhorrent about the idea
of an election being determined in such a mechanistic way without someone actually exercising the
faculty of ‘choice’. To start with, this raises an objection based on the notion of representative
democracy. What could be more democratic than holding a new election? But, as suggested above,
is the new result likely to be any more ‘democratic’ than the original poll in September? It will
certainly be different but will it produce representation in the Senate that could be quite discordant
with that of the previous election. Unless one is prepared to attribute a chameleon-like notion to
‘the people of the State’ where the constitutional interest of the State in the outcome varies
according to changed temporal and electoral circumstances, the coin-toss option tends to preserve
the original choice of the people more consistently than if the matter is subject to a new election.27
Conclusion
It must be conceded that the suggestion that the CDR determine the electoral petitions by directing
the matter be settled by the toss of a coin28 might seem at first sight somewhat outrageous and
frivolous. There is nevertheless, it is suggested, a sound and rational basis for concluding that all
things considered, it represents a more plausible, mathematically elegant and supportable result. It
is fairer to all the contestants who were involved in the September election and is arguably
preferable to the much greater uncertainties that would be inherent in a new election.
In the end, however, and perhaps understandably the natural inclination of the CDR will probably be
to gravitate towards a new vote as the most ‘democratic’ solution. This is irrespective of how
rational any suggested alternative might be. To direct a new election at least preserves the Court’s
neutrality and its apolitical constitutional status in responding to what in the end is essentially a
‘political question’.
Dr Peter Johnston
Senior Fellow in Constitutional Law
Monash University
11 December 2013
27
28
Benefit Pty Ltd (1985) 158 CLR 678 where it refers to the possibility of an officer of the executive
exercising powers outside the boundaries of the law. In the instant context it refers to the fact that in
the absence of any legal prescription dictating the particular outcome either of two possible results is
open to selection. That selection does occur within defined legal boundaries and cannot be said to be
at large and unregulated. Purposively, coin tossing is a device to supplement the other aspects of the
counting process when the limits of that system have been reached without a definitive outcome.
It must be conceded that the notion of ‘choice by the people’ is to some extent a constitutional
fiction. Nevertheless, the High Court has invested in the notion a considerable contend that is
apparent in the jurisprudence referred to in note 6 above.
Or some other form of lottery. It is imperative that whatever method be nominated it should be
acceptable to the parties. There is also a need to ensure that whatever device is used it guarantees
physical equality of chance in the sense that, for example, one side of the coin must not be heavier
than the other or that there is some unevenness in the physical process of "tossing".
9